Nappi v. Kappeler
| Decision Date | 28 March 1983 |
| Parties | Peter NAPPI, Plaintiff, v. Richard KAPPELER and Anita Kappeler, Defendants. |
| Court | New York Supreme Court |
S. Robert Kroll, Merrick, for plaintiff.
Malone, Dorfman & Tauber, P.C., Freeport, for defendants.
Motion by defendants for summary judgment is granted to the extent hereinafter indicated and is otherwise denied.
At the outset the cardinal issue to be determined is whether, subsequent to the June 1, 1982 amendment to Section 170.55 of the Criminal Procedure Law, the taking of an adjournment in contemplation of dismissal (ACLD) precludes the commencement of an action for malicious prosecution and false arrest.
Section 170.55 of the CPL was amended by adding subdivision 6 thereof, which states as follows:
Prior to the amendment to Section 170.55 of the CPL, there were a number of decisions holding that an adjournment in contemplation of dismissal was not such a successful termination of a criminal proceeding to permit the defendant in that proceeding to thereafter maintain a malicious prosecution against the complainant. (Hollender v. Trump Village Cooperative Inc., 84 A.D.2d 574, 443 N.Y.S.2d 437; Fair v. City of Rochester, 84 A.D.2d 908, 446 N.Y.S.2d 668.)
Neither plaintiff nor defendant have submitted any reported decisions relating to this matter subsequent to the June 1, 1982 amendment of Section 170.55 of the CPL.
The plaintiff contends that the intention of the Legislature in enacting this provision was to counter the prior decisions of the court so as not to preclude a party, who accepts a ACOD determination, from instituting a subsequent malicious prosecution of false arrest proceeding.
The court denies the plaintiff's request for leave to amend his complaint to allege an adjournment in contemplation of dismissal, in that the court finds that in enacting the amendment to § 170.55 of the CPL the Legislature did not intend an ACOD determination to constitute a "favorable determination" so as to allow a party to institute a malicious prosecution proceeding. Rather, the intention of the Legislature was to specifically provide that such a plea could not, in effect, be utilized against him as an acknowledgement of guilt, but in doing so there was no intention of the Legislature to, in effect, allow an ACOD to be interpreted as a finding on the merits that the matter was successfully terminated in his favor.
The court further notes that Professor Bellacosa, in his Practice Commentary, McKinney's Consolidated Laws of New York, Book 11A, § 170.55, which was published subsequent to the effective date of the amendment, states that, "Subdivision six * * * merely codifies existing law", and he also makes the following statement: Although the accused's guilt is not judicially determined, a defendant who accepts an ACOD cannot thereafter maintain a malicious prosecution action (citations omitted)."
Further, the first, second and third causes of action are...
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